Op-Ed: Selective justice: Foreign nationals and the death penalty

Geneva
-
The International Commission against the Death Penalty (ICDP) steps up its campaign this week for the abolition of the death penalty worldwide.

Over the course of the week, representatives of ICDP are involved in two meetings with the Geneva-based United Nations Human Rights Council. The first, a meeting with foreign ministers and the Office of the UN High Commissioner of Human Rights took place Monday. A further high-level panel discussion is scheduled for Mar. 5

Founded in 2010, ICDP’s purpose is to undertake complementary actions to those carried out by International and Regional Organizations, civil society and political representatives who favor the abolition of the death penalty.

ICDP commissioners are drawn from across the globe and count a number of former presidents and former prime ministers among their ranks.

Among the subjects discussed this week will be a possible international moratorium on the abolition of executions and the vulnerability of foreign nationals facing the death penalty in jurisdictions other than their own. The United Nations is next scheduled to vote on a possible moratorium in December 2014.

On the question of foreign nationals, prior to this week’s meetings in Geneva, two of ICDP’s commissioners, Ruth Dreifuss, former President of the Swiss Confederation and Federico Mayor, current President of ICDP and who formerly held posts as Director General of UNESCO and Spain’s Minister of Education and Science have authored a paper highlighting specific cases demonstrating the discrimination often faced by migrant workers in foreign lands who come up against judicial systems that still permit the death penalty.

Dreifuss and Mayor point to the jeopardy in which such cases place accused persons, cases that often concern foreign nationals languishing on death row in jurisdictions far from their homeland. Apart from questions of fairness to those accused, such cases also have the potential to fuel diplomatic discord and sour international relations.

The United States is a signatory to the Vienna Convention on Consular Relations. Under that treaty, foreign nationals must be notified “without delay” of their right to inform their consulate when detained.

At the time of his arrest, Tamayo, who was subsequently diagnosed with “mild mental retardation,” was not informed of his right to consular assistance. As a result, the Mexican authorities could not secure adequate defense counsel for him. Consequently, one of the concerns that emerged from Tamayo’s trial involved the quality of his defense from his court-appointed lawyer.

The ICJ ordered the US to review the convictions to establish whether the defense of these people had been adequate. For Edgar Tamayo, this never happened. Despite the ICJ ruling and in the face of requests for a stay of execution by both the US State Department and the Mexican government, authorities in Texas went ahead with execution anyway. Tamayo was executed by lethal injection on Jan. 22, 2014.

Since the United States reinstated capital punishment in 1976, in states where the death penalty remains in force, 28 other foreign nationals have been executed by judicial decree, often despite diplomatic calls for clemency. According to the Death Penalty Information Center in all but one of these cases the authorities failed to comply with the Vienna Convention.

But such failures in the justice system are by no means unique to the United States. In January 2013, Rizana Nafeek, a Sri Lankan woman, was beheaded in Saudi Arabia. She received no legal representation until after being sentenced to death. She was charged with murder based on a “confession” that she’d later retracted, stating it had been obtained under duress.

When her alleged crime took place, Ms Nafeek was, according to her birth certificate, just 17 years old. Her execution was carried out despite Saudi Arabia being party to the UN Convention on the Rights of the Child. That Convention bans the imposition of capital punishment on persons aged under 18 at the time of the offence.

2013 also saw Indonesia bring to an abrupt halt a four-year hiatus in that country’s use of the death penalty. Indonesia executed five individuals in 2013, two of them foreign nationals.

Adami Wilson, believed to be from Malawi, and Muhammad Abdul Hafeez from Pakistan were executed by shooting in March and November respectively. These executions were carried out against a background of the Indonesian government taking positive steps to prevent executions of its own nationals abroad.

As greater numbers of their nationals work abroad, argue Dreifuss and Mayor, countries that retain capital punishment will face the same dilemma as Indonesia. Hundreds, perhaps thousands, of foreign nationals are under death sentences in countries that retain the death penalty.

Standing the examples above, the authors see no easy answers as to how countries can best protect their nationals from the ultimate punishment whilst overseas and, as the example of Indonesia shows, such questions are not the sole preserve of abolitionist nations.

What is beyond doubt, contend Dreifuss and Mayor, is that the death penalty causes injustice and harm. In their view, its cruelty, ineffectiveness as a crime deterrent and the concomitant risk of executing the innocent leave it with no place in the modern era.

As ICDP continues to campaign towards a world free of the death penalty, the vulnerability of foreign nationals sentenced to death is but one of a number of challenges. Other major stumbling blocks include the actions of a small group of nations China, Iran, Iraq, North Korea, Saudi Arabia, Yemen and the US, the latter alone among Western nations, who remain the world’s most prolific executioners.

But despite the hurdles remaining in the path towards global abolition, the authors see some grounds for optimism. The global trend is grinding slowly towards complete abolition. Already more than 150 countries have now rejected the death penalty or do not execute.

In December 2014, a vote on a resolution calling for moratorium on the death penalty will once again come before the UN. It will be the fifth time the United Nations has voted on similar abolition resolutions. On each of the previous four occasions resolutions gathered increased global support.